THE KABOOM!!! OPTION: WHEN UNIONS BARGAIN IRRESPONSIBLY

After writing about what unions can do when an agency drags its feet in term bargaining, fairness demands that we also touch on what happens when the union negotiators bargain irresponsibly, e.g., they manufacture bogus grievance or ULP claims to avoid FSIP taking jurisdiction. Although it is rarely talked about, agencies have the ability to leave the union bargaining table leadership shell-shocked. Consequently, union negotiators need to keep this potential in mind lest they push the agency to enter the launch codes and attack.

Consider the following as an example of what a union-delayed term bargaining mess might look like.

The agency served notice pursuant to the contract procedures that it wanted to reopen and modify the term contract.

The union demanded to bargain ground rules, but submitted a truly outlandish ground rule proposal leaving no doubt that all it wanted was to delay changing the term contract. Perhaps its proposal contained a demand for twice as many bargaining team members as the agency was appointing, or for such a leisurely bargaining schedule that any agency agreement to pay the union’s travel and per diem costs would set it back hundreds of thousands, or perhaps the proposal also addressed the size and quality of the paper that all counterproposals were to be printed on.

When the agency tried to get dates to bargain over the ground rules, the union provided very few and all were facially inconvenient, e.g., the day after Thanksgiving, Christmas Eve, etc.

When the agency accepted one of the absurd dates, the union trumped up some allegation about the agency bargaining in bad faith and withdrew from the table until the subsequent grievance or ULP it filed was resolved—up to an including a full FLRA decision and perhaps court of appeals review. In other words, it would be years before it would meet again.

When the agency notified the union it was implementing its term contract proposals, the union petitioned FSIP to block implementation, but asked the Panel to reject jurisdiction on the grounds that there had not been any bargaining yet, or that FMCS had not yet been involved, or the bargaining was tainted by the alleged bad faith charge. (There is FLRA case law finding unions have engaged in bad faith bargaining by making outlandish ground rule demands. If a union does that AND the agency has served it with its substantive term contract proposal, the agency has a good argument that the union has lost or waived its right to bargain over the proposed new term contract, thereby allowing the agency to implement it. That might be an easier path for the agency to pursue if its initial term contract changes are reasonable and workable rather than loaded with bargaining fodder even it does not want to implement. Under law the agency can only unilaterally implement the term contract proposal it has on the table.)

When the Panel rejected jurisdiction sending the parties back to bargain some more, the union started the games all over again.

In the meantime, the agency’s desire to change some ineffective parts of the promotion process, or cut the costs of its negotiated public transit subsidies, or reduce union official time usage by 40% or even expand AWS/CWS options for employees goes nowhere.

Obviously, the union hopes that the agency will come crawling on its knees with a deal in return for the union responsibly engaging in bargaining, e.g., double the number of full-time union reps, settle a big grievance, increase transit subsidies, etc. A lot of agencies probably do that to get things moving forward, but unions make a big mistake if they think agencies have no other options. There is something we call the KABOOM! Option that can suddenly and drastically turn the tables on the union forcing it to make up-front concessions just to get the agency to back off.

Here is how it would work, picking up with the next series of facts.

7. Instead of seeking to make broad changes in promotions, performance appraisals, telework, leave, subsidies, etc. the agency deletes them from the term contract proposal it planned to give the union and targets only those articles dealing with the union as an institution, e.g., official time, arbitration, union office space, mid-term contract reopeners, dues withholding, mid-term negotiations, etc. It then serves those proposals on the union announcing its plan to implement the new contract in 30 days.

8. In all likelihood the union would once again invoke the services of the FSIP to delay implementation, but this time the agency would go on record saying that it believes the union has engaged in bad faith bargaining, e.g., excessive delay, misleading statements, demands for unrelated concessions, illegal preconditions for bargaining, etc.

9. There is still a good chance that the Panel will reject jurisdiction if only for technical reasons. The Panel is very much a form over substance institution. So, let’s assume it does.

10. At this point the agency announces that irrespective of what the Panel concluded about whether there is an impasse, it is implementing the proposal that it gave the union at #7 above. After all, FLRA has already said that FSIP’s concept of an impasse is not binding on the Authority when it adjudicates a ULP charge. Take a look at the excerpt from an FLRA decision at the end of this post if you think an FSIP decision about whether there is an impasse is binding on FLRA.

11. If the agency drafted its changes skillfully, they do the following at a minimum:

Impose shorter deadlines throughout the grievance-arbitration process, e.g., a dispute must be grieved within 5 days of the alleged violation, a case invoked for arbitration must be at hearing no later than 90 days after it is invoked, etc. Or it places limits on employee remedies, e.g., back pay is limited to 15 days before the grievance was filed irrespective of whether it is an on-going continuous violation. Or, it imposes several new requirements for attorney fee petitions.

12. The agency implements all the changes knowing not only that the union will probably file a grievance or ULP, but also that it will take years for those allegations to get litigated. In the meantime, the union as an institution will have to operate under a vastly different set of circumstances.

13. Full- time union reps are ordered back to their jobs, given assignments, and held to performance standards. When they ask for official time the agency requires them to disclose a reasonable amount of information about the need for every request to use time, e.g., what are they going to do during the time, why do they believe that will take the time requested, why do they need the time now rather than later in the week, etc.

Some readers are probably saying that the union’s grievance will get its reps time-and-one-half overtime for all the time they used outside business hours to do work management denied them official time to do. WRONG! First, union reps never get overtime, only straight-time and not always even that. Second, the rep would have had to request each use of time of management and have been denied to even qualify for potentially getting reimbursed. If the agency denied the time for the day and hour requested, but offered to bundle all the week’s requests into one half-day release on a day acceptable to the agency, the union will have the burden to prove that was not reasonable. Third, the union reps will not be reimbursed until the years of litigation are concluded. In the meantime they will be liable for meeting performance standards, just like their colleagues, and if they can’t they risk unacceptable performance action, withheld step increases, low appraisal scores, etc.

Some readers might also be saying that even if the back pay is limited, the union could score very big attorney fees. Yes, it could—unless on the eve of the arbitration hearing the agency agrees to pay for all the straight-time hours worked. That would void any entitlement to attorney fees.

The bottom line is that the more full-time union reps a union currently has the greater the pressure on the union negotiator to strike a responsible ground rules deal with the agency to avoid losing them.

14. The agency moves the union material out of its agency office space and locks the space.

Some readers are probably saying to themselves that the union will just rent space off-site and force management to reimburse it. WRONG! The Back Pay Act does not authorize payment of money damages to employees or the union. So, the union loses its base of operation where employees know to find them, its office equipment, and its storage space.

15. The agency declares any arbitration cases not at hearing by the new deadline, void and closed.

Some readers are probably saying to themselves that the union will just file more ULP charges and force the agency to reopen the cases. WRONG! Aside from the fact that would delay the arbitrations years, the union might lose its basic charge that the agency did not have the right to unilaterally implement the changes. For example, suppose an employee was fired, the union invoked arbitration, it failed to be available for hearing within the new deadline, and IT LOST ITS CASE TO FORCE THE AGENCY TO REOPEN AND ARBITRATE IT. The fired employee would have a duty of fair representation claim against the union that potentially could require the union to pay him for his loses. So, the union would have little option but to comply with the new procedural deadlines and requirements just to protect itself from risk.

16. The agency implements a proposal that employee can withdraw from the union at any time after being a member for a year and without having to give the union advance notice.

Some readers are probably saying to themselves that the union will just grieve any dues cancellations and force the agency to pay. WRONG! Case law makes it clear that the agency must pay the union, but it can (and likely must) then collect the retroactive dues from the employees. Imagine how happy a member will be when the agency asks him/her for two years of retroactive dues.

17. The agency starts reopening the articles in the contract under the open-window periods contained in the new Mid-Term Bargaining article it imposed.

Some readers might have been saying to themselves up to this point that by proposing and implementing only modified articles aimed at the union’s institutional rights, the agency forfeited the chance to get the mainstream working condition changes it wanted in the first place, e.g., in promotions, performance appraisals, telework, leave, subsidies, etc. Do we really have to say WRONG! again? If the Mid-Term Bargaining article contained a right to reopen specific articles on a prescribed calendar schedule the agency can just wait for those windows to open and force the union into single-article negotiations. For example, maybe the Mid-term Bargaining article said, “The agency may reopen the Promotion article between the 30th and 45th day after this contract is implemented and the Leave article between the 60th and 75th day, etc.” The union would not even have the right to put other articles on the table containing things it wanted so that it would have something to trade the agency.

*****

By making unilateral changes in union institutional concerns the agency can cherry pick those items that have little or no impact on the employee-body nor back pay liability even though they do the union some harm. And union negotiators who forget that are setting themselves up for a big fall.

The reason you probably have never heard of the KABOOM! option is that union negotiators have rarely pushed agencies to this point—or maybe the agency LR reps have not put this strategy together on their own either. But that does not change the fact that with small exception an agency has the ability to significantly change the union’s inner workings, especially if the union’s delay tactics crossed the line giving the agency a waiver-by-inaction argument. The agency’s risks run between a few dollars of retroactive straight-time pay, which would be offset by all the agency work the union reps did, and merely posting a ULP notice for 60 days around the office. BFD!!!

*****

Here is the excerpt from an FLRA decision explaining that it is not bound by FSIP’s decision as to whether there is an impasse. It only makes sense given that FSIP can declare a party not at impasse because it did not spend enough time at FMCS. In contrast, FLRA might look at the union’s dilatory, bad faith behavior and declare that the agency had the right to unilaterally implement.

The definition of “impasse” relied on by the Respondent appears in the regulations of the Federal Service Impasses Panel (the Panel). The Panel uses this definition to determine whether it should assert jurisdiction over an impasse. See U.S. Department of Justice, Immigration and Naturalization Service, Chicago District Office, Chicago, Illinois, 52 FLRA 686, 688 (1996). The reference in the regulation to third party intervention prior to impasse implements Section 7119(b) of the Statute, which states that parties should seek to resolve their disputes through voluntary arrangements, such as mediation, before seeking the assistance of the Panel.

The application of the Panel’s regulation is, however, limited to issues before that body. Section 2470.1 states that, “the regulations contained in this subchapter are intended to. . .prescribe procedures and methods which the Federal Service Impasses Panel may utilize in the resolution of negotiation impasses when voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation fail to resolve the dispute.” Nothing in Part 2470 suggests that the definition contained in section 2470.2(e) serves a purpose broader than that described in the regulations: assisting in establishing the jurisdiction of the Panel over a particular case.

In an unfair labor practice case concerning the duty to bargain, resort to third party mediation is not a prerequisite to a finding of impasse. Section 2470.2(e) of the Panel’s regulations simply does not apply in this context. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA 217, 230 (1984) (impasse exists and agency may unilaterally implement change in working conditions where parties fail to reach agreement after full negotiation and union has not requested mediation or Panel intervention).